October 17, 2018

When a Little League baseball team is ahead by 10 runs after four innings, the trailing team’s manager must concede. It’s called the mercy rule. When you’re a state supreme court that gets handed a 9-0 reversal by perhaps the most divided U.S. Supreme Court in history? Mercy!

That’s what happened to our Hoosier justices on Feb. 20. The Supreme Court of the United States unanimously overturned a unanimous Indiana Supreme Court, which had ruled it was A-OK for the state to seize a Marion man’s $42,000 Land Rover. Problem was, the most that Tyson Timbs could have been fined for his drug conviction was $10,000.

This seemed an excessive fine to everyone except the police and prosecutors who went after Timbs’ vehicle as a civil forfeiture — and to the Indiana Supreme Court. No court in Indiana allowed the Timbs civil forfeiture until Indiana’s five justices did.

Indiana Lawyer managing editor Olivia Covington has followed Timbs and other suspect civil forfeiture cases extensively, including traveling to Washington to cover the Timbs arguments before the U.S. Supreme Court in November. (You can read more of her fine reporting on this case here.)

Covington’s reporting from D.C. in late 2018 hinted that Indiana might strike out. For instance, Justice Neil Gorsuch subtly replied to Indiana Solicitor General Thomas Fisher’s circuitous argument that Timbs had not been subjected to an excessive fine this way: “Really? Come on, General.”

Fisher is a skilled litigator, but he was sent to Washington to defend the indefensible. No matter how cleverly Fisher tried to separate Indiana from the United States before the nation’s Supreme Court, his arguments were never going to win the day, nor should they.

Timbs had purchased his vehicle with proceeds from his late father’s insurance policy. He has paid for his crime as he works on recovering from addiction. And he appears to be a somewhat reluctant crusader against the widespread policing-for-profit abuses of civil forfeiture that took a serious hit with the landmark decision that now forever bears his name.

“Taking my vehicle makes things unnecessarily difficult for a person like me, who already struggles,” Timbs said after the SCOTUS ruling. “…(I)f they’re trying to rehabilitate and help me help myself, why do you want to make things harder by taking away the vehicle I need to meet with my parole officer or go to a drug recovery program or go to work?”

It’s hard to understand the state’s compelling interest in taking a shiny vehicle from Tyson Timbs or anyone else with property of value who is convicted of a crime. But it’s simple to understand why they would if they could. Money. It’s always been about the money, and the Indiana Supreme Court was willing to shred centuries worth of legal tradition to allow it. Imagine what consequences could flow from that, had the Indiana court been upheld.

You don’t have to imagine. As Covington reported for IL in December, “Justice Stephen Breyer pushed Fisher (on proportionality in civil forfeitures) … asking whether it would be appropriate to seize either a Bugatti or a jalopy if the driver was going 5 mph over the speed limit. Fisher said the type of car would not matter — all that would be relevant is the fact that the car was being used to commit a crime.”

Your tax dollars at work. Honestly, in what world are we living where such logic is even contemplated, let alone enunciated, before the highest court in the land? Take your pick from the political spectrum: Justices Ruth Bader Ginsburg and Clarence Thomas each wrote eloquently about the deep roots of the Excessive Fines Clause as a fundamental liberty in rejecting Indiana’s tortured logic. Thank goodness.

After this humiliating shutout, Timbs holds an important lesson for Indiana’s legal luminaries: When your argument is that the United States Constitution doesn’t apply in these parts, you’ve already lost. Consider that your own mercy rule.•

• Dave Stafford is editor of Indiana Lawyer. Opinions expressed are those of the author.

ADVERTISEMENT

Dave Stafford joined the staff of the Indiana Lawyer as a reporter in May 2012 and was named editor in October 2017. An award-winning print journalist for more than 30 years, Stafford has worked as a reporter and editor at newspapers including the Herald Bulletin in Anderson, Indiana, the News-Journal in Daytona Beach, Florida, and the Times-Dispatch in Richmond, Virginia. He and his wife, Denise, live in their hometown, Indianapolis.